THIRD DIVISION
DILLARD, P. J.,
GOBEIL and PIPKIN, JJ.
NOTICE: Motions for reconsideration must be
received no later than 4:30pm on the 10th day after the
decision was issued to be deemed timely filed.
https://www.gaappeals.gov/rules
September 14, 2026
In the Court of Appeals of Georgia
A26A1271. KELLEY v. THE STATE.
DILLARD, Presiding Judge.
After trial, a jury convicted Stewart Kelley on four counts of child molestation
and three counts of sexual battery on a child under 16 years of age. Kelley appeals his
convictions and the denial of his motion for new trial. More precisely, he challenges
the sufficiency of the evidence supporting several of his convictions and also argues
the trial court erred in denying his claim that defense counsel rendered ineffective
assistance and that counsel’s cumulative errors denied him a fair trial. For the
following reasons, we affirm Kelley’s convictions and the denial of his motion for new
trial.
Viewed in the light most favorable to the jury’s verdict,1 the record shows that
in 2012, Kelley met Nancy, and the two began dating. At that time, Kelley had two
children from a previous marriage—a boy, S. K. (who lived with his mother), and a
girl, A. K. (who was 12 years old). After one month, Kelley and Nancy married; and
eventually, they had three children together—including a daughter, B. K., who was
born in 2015. But in January 2020, Nancy filed for divorce. Even so, Kelley continued
to live in their shared home for another month before moving out in late February.
A bit later, on February 26, 2020, B. K.—who was four years old—disclosed
to Nancy that Kelley inappropriately touched her. Specifically, B. K. told her mother
that Kelley placed his tongue in her mouth, put his finger in her vagina, licked her
breast, and warned her that if she told on him, demons would come out of the wall and
get her. Unsure of what to do, Nancy called her neighbor (Vanessa Henry) to come
over and speak with B. K. When Vanessa first arrived, B. K. was quiet and fidgeting
with her hands; but after a moment, she told Vanessa that Kelley “touched her down
there.” Vanessa then told Nancy that she needed to contact law enforcement
1
See, e.g., Libri v. State, 346 Ga. App. 420, 421 (816 SE2d 417) (2018) (noting that when a conviction is appealed, we view the evidence in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence).
2
immediately. Nancy did so, and a deputy with the Walker County Sheriff’s Office
arrived at the house a short time afterward. B. K. then repeated her disclosure to the
deputy, after which the case was turned over to an investigator and DFCS was also
notified.
The next day, a nurse at a local child-advocacy center conducted a sexual
assault examination of B. K., the results of which neither indicated sexual abuse nor
ruled it out. And later that same day (while still at the child-advocacy center), B. K.
underwent a forensic interview, during which she repeated her disclosure—including
that Kelley touched her vagina with his finger and penis. Then, following the
examination and interview, all three of Nancy and Kelley’s minor children were
temporarily placed in foster care by DFCS pending the outcome of the investigation.
Around the same time frame as B. K.’s disclosure, A. K.—who was nearly 20
years old—reached out to her aunt and revealed that Kelley touched her
inappropriately as well. The aunt immediately contacted DFCS about A. K.’s
disclosure and also informed Nancy, who in turn contacted law enforcement. On
March 3, 2020, the investigator with the Walker County Sheriff’s Office interviewed
A. K., during which A. K. disclosed that Kelley touched her vagina from the time she
3
was ten years old until she was 16 years old. In fact, A. K. stated that she left Kelley
and Nancy’s home to live with her biological mother to avoid being around Kelley.
A few months later, law enforcement arrested Kelley. Around that same time,
Nancy voluntarily terminated her parental rights to the three children. Ultimately, the
State charged Kelley (via indictment) with one count of child molestation and one
count of sexual battery on a child under the age of 16 years—both of which concerned
his inappropriate touching of A. K. And in the same indictment, the State charged
Kelley with three counts of child molestation and three counts of sexual battery on a
child under the age of 16 years—all of which related to his sexual abuse of B. K.
The case proceeded to trial, during which A. K. admitted disclosing to her aunt
that Kelley inappropriately touched her but added that she regretted doing so because
it was not true. A. K. also testified that Nancy told her to lie and say Kelley molested
her. In addition, A. K.’s aunt testified that A. K. told her Kelley inappropriately
touched her. A friend of A. K.’s from high school testified that A. K. told her (when
they were in school together) Kelley was sexually abusing her, but that not long before
trial, A. K. contacted her and asked that she not reveal the disclosure in court. Finally,
4
the investigator who interviewed A. K. testified, and the State played a recording of
the interview in which A. K. detailed the sexual abuse to which Kelley subjected her.
As for B. K., Nancy and her neighbor (Vanessa) recounted her disclosure. The
forensic interviewer from the child-advocacy center also testified; and the State played
a video of the interview, in which B. K. repeated her disclosure and provided further
details. Additionally, the foster mother—with whom B. K. was placed by DFCS after
her initial outcry—testified that B. K. stated Kelley touched her “no no” and chest
and made her watch horror movies to scare her. B. K. also testified and repeated her
allegation that Kelley—whom she referred to as “old dad”—touched her “no no,”
and stated that she did not want to live with him. And later, during cross-examination,
B. K. added that Kelley touched her “pee pee.”
After the State rested, Christopher Bridges—Kelley’s nephew—testified for
the defense and stated that he had known both Kelley and Nancy for most of his life.
Bridges added that, in his experience, Nancy had a poor reputation for truthfulness.
Then, on cross-examination, Bridges admitted to recording conversations with Nancy
after Kelley was arrested. These recordings were not produced during trial, but
Bridges claimed that—in these conversations—he urged Nancy to tell law
5
enforcement that B. K.’s allegations were not true. Bridges also claimed that Nancy
initiated one call because she wanted him to drive her to the sheriff’s office so she
could recant the allegations. But Bridges conceded that, in the same conversation, he
asked Nancy “between you and God” did B. K. really make the outcry, and Nancy
responded that she did.
Kelley then testified in his own defense, and denied inappropriately touching
either A. K. or B. K. But at the end of trial, the jury found Kelley guilty on the charge
of child molestation of A. K.2 and on all six charges of child molestation and sexual
battery on a child under 16 years of age as to B. K.
Later on, Kelley obtained new counsel and moved for a new trial, arguing,
among other things, that his defense counsel rendered ineffective assistance. The trial
court conducted a hearing on the motion, during which Bridges provided more
detailed testimony about the recorded phone conversations with Nancy—playing one
recording that was just over 20 seconds. Two other witnesses, a friend of Nancy’s and
a DFCS case manager, testified about instances in which Nancy or B. K. allegedly
2
After the State rested, Kelley moved for a directed verdict. The State responded that it would move for an entry of nolle prosequi as to the sexual-battery charge pertaining to A. K. The trial court agreed, and denied Kelley’s motion as to the remaining charges.
6
recanted the allegations against Kelley; and Kelley’s trial counsel testified about his
representation. At the hearing’s conclusion, the court denied Kelley’s motion, issuing
an order a few days later. This appeal follows.
1. Kelley first contends the evidence was insufficient to support his convictions
on the charges pertaining to B. K.3 We disagree.
When a criminal conviction is appealed, the evidence must be viewed in the
light most favorable to the verdict, and the appellant no longer enjoys a presumption
of innocence.4 Importantly, in evaluating the sufficiency of the evidence, we do not
“weigh the evidence or determine witness credibility, but only determine whether a
rational trier of fact could have found the defendant guilty of the charged offenses
3
The Supreme Court of Georgia discontinued its practice of examining the sufficiency of the evidence sua sponte when the issue is neither briefed nor meaningfully argued on appeal. See Davenport v. State, 309 Ga. 385, 396(b) (846 SE2d 83) (2020) (“We cannot now identify a compelling reason to retain our current practice of sua sponte review of the sufficiency of the evidence in cases in which the appellant is not sentenced to death, and there are good reasons to abandon that practice.”). We do not consider, then, the sufficiency of the evidence as to Kelley’s conviction pertaining to A. K. because he has not challenged it.
4
See English v. State, 301 Ga. App. 842, 842 (689 SE2d 130) (2010) (noting that following conviction, an appellant no longer enjoys a presumption of innocence).
7
beyond a reasonable doubt.”5 The jury’s verdict will be upheld, then, so long as there
is “some competent evidence, even though contradicted, to support each fact
necessary to make out the State’s case.”6
The version of OCGA § 16-6-4(a)(1) applicable at the time of the subject
incidents provided that “[a] person commits the offense of child molestation when
such person ... [d]oes any immoral or indecent act to or in the presence of or with any
child under the age of 16 years with the intent to arouse or satisfy the sexual desires
of either the child or the person ....”7 And the applicable version of OCGA §
16-6-22.1(b) provided that “[a] person commits the offense of sexual battery when he
5
Jones v. State, 318 Ga. App. 26, 29(1) (733 SE2d 72) (2012) (quotation marks omitted). See Jackson v. Virginia, 443 U.S. 307, 319(III)(B) (99 SCt 2781, 61 LE2d 560) (1979) (noting that the relevant question is, after viewing the evidence in the light most favorable to the prosecution, could any rational jury have found the essential elements of the crime beyond a reasonable doubt).
6
Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001) (quotation marks omitted).
7
See OCGA § 16-6-4(a)(1) (2009). The statute has been amended twice in the last two years, but neither of those amendments affects this appeal. See Ga. L. 2023, Act 347, § 3-7; Ga. L. 2022, Act 648, § 1.
8
or she intentionally makes physical contact with the intimate parts of the body of
another person without the consent of that person.”8
Here, Count 3 of the indictment charged Kelley with child molestation by
alleging that he “between the 26th day of October, 2016, and the 26th day of
February, 2020 ... did commit an immoral and indecent act to [B. K.], a child under
the age of sixteen years, with the intent to arouse and satisfy the sexual desires of said
accused by the touching the vaginal area of said child with the penis of accused ... .”
Counts 5 and 7 also charged him with child molestation using language nearly identical
to Count 3, with the distinctions being that he “touch[ed] the vaginal area of said child
with the hand of the accused” and that he “lick[ed] the breast of said child with the
tongue of the accused” respectively. Count 4 charged Kelley with sexual battery
against a child under 16 by alleging that he “between the 26th day of October, 2016,
and the 26th day of February, 2020 ... did intentionally make physical contact with the
intimate parts of the body of another person, [B. K.], a child under the age of 16 years,
without the consent of said child, by touching vaginal area of said child with the penis
8
See OCGA § 16-6-22.1(b) (2006). This statute has also been amended
recently; but again, that amendment has no affect on this appeal. See Ga. L. 2021, Act 16, § 1.
9
of the accused ... .” And as with the child-molestation charges, Counts 6 and 8
differed only in the manner the offense was committed, alleging that he “touch[ed]
the vagina of said child with the hand” and “lick[ed] the breast of said child with the
tongue.”
On appeal, Kelley challenges the credibility and consistency of the State’s
witnesses, given his testimony denying any inappropriate behavior and Bridges’s
testimony claiming that Nancy recanted her claims about B. K.’s disclosure. He also
argues that B. K. used several different terms in her disclosures to describe where
Kelley touched her, such as “cooter,” “no no,” and “pee pee,” but the State never
connected those terms to the language used in the indictment, nor did it clarify that
her allegations pertained to Kelley as opposed to Nancy’s new boyfriend. But as to
Kelley’s first argument, it is the jury’s role to “resolve conflicts in the evidence and
determine the credibility of witnesses, and the presence of such conflicts does not
render the evidence insufficient.”9 And here, the jury resolved any inconsistencies and
9
Gathers v. State, 355 Ga. App. 761, 763(1) (844 SE2d 882) (2020) (quotation marks omitted). Accord Allen v. State, 345 Ga. App. 599, 602(1) (814 SE2d 740) (2018). See Garner v. State, 346 Ga. App. 351, 355(1) (816 SE2d 368) (2018) (“It is well established that resolving evidentiary conflicts and inconsistencies, and assessing witness credibility, are the province of the factfinder, not this Court.” (punctuation omitted)).
10
resulting credibility issues in favor of finding Kelley guilty.10 Moreover, Kelley’s
second argument is belied by the record. The forensic interviewer clarified—as shown
in the video of the interview—which terms B. K. used for female and male body parts
and that B. K.’s allegations unequivocally concerned Kelley and not Nancy’s new
boyfriend. Also significantly, witnesses are not required to “describe the acts
constituting the commission of crimes in statutory or technical language in order to
prove the commission of such acts.”11 Instead, the language used by witnesses to
describe criminal acts “may be considered in context to provide meaning, and jurors
can be presumed to have some knowledge of slang expressions in common parlance
in the vernacular.”12
10
See Seals v. State, 350 Ga. App. 787, 790(1) (830 SE2d 315) (2019) (holding that defendant’s “challenge to his convictions based solely on conflicts in the evidence, which the jury resolved against him, is meritless”); Cross v. State, 309 Ga. App. 746, 748(1) (710 SE2d 928) (2011) (holding that defendant’s challenge to the sufficiency of the evidence failed because it was for the jury to resolve conflicts in the evidence, and the “jury obviously resolved the inconsistencies and the resulting credibility issues[ ] in favor of finding defendant guilty” (punctuation omitted)).
11
Davis v. State, 357 Ga. App. 720, 722(1) (848 SE2d 173) (2020) (punctuation omitted). Accord Chitwood v. State, 352 Ga. App. 218, 220(1)(a) (834 SE2d 334) (2019).
12
Davis, 357 Ga. App. at 722(1) (punctuation omitted). Accord Chitwood, 352 Ga. App. at 220(1)(a).
11
Again, the State presented evidence that B. K. disclosed to her mother—in
addition to a neighbor, law enforcement, her foster mother, and a forensic
interviewer—that Kelley touched her vagina with his finger and penis and her breast
with his hand. The State also presented a video of the forensic interview in which B.
K. repeated her disclosure. And at trial, B. K. testified that Kelley inappropriately
touched her. Given these circumstances, the evidence was sufficient to support
Kelley’s convictions on the charges of child molestation13 and sexual battery on a child
under the age of 16 years.14
13
See McCurdy v. State, 359 Ga. App. 885, 886–87(1)(b) (860 SE2d 172) (2021) (holding that evidence that defendant touched minor victim’s vagina with his hand was sufficient to support his conviction of child molestation); Jackson v. State, 330 Ga. App. 108, 112(2) (766 SE2d 558) (2014) (determining that evidence defendant touched victim’s breast and vagina with his hand and penis was sufficient to support child molestation conviction).
14
See Miller v. State, 359 Ga. App. 380, 382(1) (857 SE2d 830) (2021) (finding that evidence defendant touched victim’s vagina with his penis and touched her breast with his hand sufficiently supported his convictions on sexual battery charges); Alford v. State, 320 Ga. App. 523, 523–25(1) (738 SE2d 124) (2013) (concluding that evidence defendant touched young girl’s vagina with his hand was sufficient to support his conviction on charge of sexual battery).
12
2. Kelley also contends his trial counsel rendered ineffective assistance, arguing
that he failed to impeach B. K. and Nancy’s credibility by introducing evidence Nancy
told several witnesses that B. K. recanted the allegations. Again, we disagree.
To evaluate Kelley’s claims of ineffective assistance of counsel, we apply the
familiar two-pronged test established in Strickland v. Washington,15 which requires him
to show that trial counsel’s performance was “deficient and that the deficient
performance so prejudiced him that there is a reasonable likelihood that, but for
counsel’s errors, the outcome of the trial would have been different.”16 Importantly,
if a defendant fails to “meet his burden on one prong of this two-prong test, we need
not review the other prong.”17 There is also a strong presumption that trial counsel’s
conduct falls within the broad range of reasonable professional conduct, and a criminal
defendant must overcome this presumption.18 Significantly, the reasonableness of
15
466 U.S. 668 (104 SCt 2052, 80 LE2d 674) (1984).
16
Chapman v. State, 273 Ga. 348, 349–50(2) (541 SE2d 634) (2001). See Strickland, 466 U.S. at 687(III); Ashmid v. State, 316 Ga. App. 550, 556(3) (730 SE2d 37) (2012).
17
McAllister v. State, 351 Ga. App. 76, 93(6) (830 SE2d 443) (2019). Accord Gomez v. State, 300 Ga. 571, 573 (797 SE2d 478) (2017).
18
Chapman, 273 Ga. at 350(2). See Cammer v. Walker, 290 Ga. 251, 255(1) (719 SE2d 437) (2011) (“A claim of ineffective assistance of counsel is judged by whether
13
counsel’s conduct is “examined from counsel’s perspective at the time of trial and
under the particular circumstances of the case[.]”19 And decisions regarding trial
tactics and strategy may form the basis for an ineffectiveness claim only if “they were
so patently unreasonable that no competent attorney would have followed such a
course.”20 Moreover, unless clearly erroneous, this Court will “uphold a trial court’s
factual determinations with respect to claims of ineffective assistance of counsel;
however, a trial court’s legal conclusions in this regard are reviewed de novo.”21 With
these guiding principles in mind, we turn now to Kelley’s claims of ineffective
assistance.
(a) Melissa Robertson. Kelley argues his trial counsel rendered ineffective
assistance by failing to impeach Nancy with evidence that she told several witnesses
counsel rendered reasonably effective assistance, not by a standard of errorless counsel or by hindsight.” (punctuation omitted)).
19
Lockhart v. State, 298 Ga. 384, 385(2) (782 SE2d 245) (2016).
20
Id.
21
Sowell v. State, 327 Ga. App. 532, 539(4) (759 SE2d 602) (2014). See Grant v. State, 295 Ga. 126, 130(5) (757 SE2d 831) (2014) (holding that “[i]n reviewing a claim of ineffective assistance, we give deference to the trial court’s factual findings and credibility determinations unless clearly erroneous, but we review a trial court’s legal conclusions de novo”).
14
B. K. recanted her allegations. The first of those witnesses, according to Kelley, was
Melissa Robertson—a Court Appointed Special Advocate (“CASA”) who worked
with Nancy when DFCS became involved in the case. At trial, Kelley’s counsel asked
Nancy if she ever told Robertson that B. K. recanted, and Nancy responded that she
had not. Then, during the hearing on Kelley’s motion for new trial, his appellate
counsel questioned trial counsel as to why he did not attempt to impeach Nancy’s
testimony by calling Robertson as a witness; and trial counsel responded that he could
not recall why he chose not to do so. Kelley now argues this failure amounted to
ineffective assistance. But to prove the prejudice prong of Strickland on a claim that
trial counsel failed to call a witness, a defendant must show the witness’s expected
testimony by “presenting either live testimony of the witness, an affidavit from the
witness, or a legally recognized substitute for the uncalled witness’s testimony.”22
This is because “a proffer by counsel is insufficient.”23 And here, Kelley did not call
Robertson as a witness during the motion-for-new-trial hearing or obtain an affidavit.
22
Curtis v. State, 330 Ga. App. 839, 842(1)(b) (769 SE2d 580) (2015) (quotation marks omitted).
23
Id. (punctuation omitted).
15
In the absence of such an evidentiary showing, he “cannot demonstrate prejudice on
his claim that counsel was ineffective.”24
(b) Christopher Bridges. Kelley also claims that trial counsel performed
deficiently by failing to introduce the audio recordings of calls between Bridges and
Nancy, in which Bridges claims Nancy said B. K. recanted the allegations. During the
hearing on Kelley’s motion for new trial, Bridges testified and—similar to some parts
of his trial testimony—claimed that Nancy told him that B. K. was now saying Kelley
never touched her. And in support of this testimony, Bridges played a 22-second
recording of one call, in which Nancy seemingly states that B. K. claimed: “My daddy
didn’t really touch me ... .” But when questioned on the issue during the hearing,
Kelley’s trial counsel responded that while he recalled Bridges testifying about Nancy
and B. K. recanting, he did not recall the audio recordings Bridges allegedly made of
their conversations. Then, when questioned as to why he did not lay a proper
foundation when cross-examining Nancy about her conversations with Bridges so that
he could impeach her with the recording, trial counsel speculated that he possibly had
no prior statement made by Nancy he could use for that purpose.
24
Price v. State, 305 Ga. 608, 614(4) (825 SE2d 178) (2019).
16
Kelley argues that trial counsel’s failure to impeach Nancy with Bridges’s
recordings of their calls amounted to ineffective assistance. But the recording played
during the motion-for-new-trial hearing—in which Nancy seemingly said B. K.
recanted—was barely audible and only 22 seconds long, lacking any means by which
to determine the context of the conversation. So, even if trial counsel had introduced
this recording into evidence, it was merely cumulative of Bridges’s testimony at trial
that Nancy was not a truthful person. Indeed, several instances in the State’s
presentation of its case cast a less than favorable light on Nancy’s character. And A.
K. testified at trial that her initial claims that Kelley inappropriately touched her
resulted from Nancy urging her to lie. Moreover, during A. K.’s earlier interview with
law enforcement (which was played for the jury), while detailing the sexual abuse to
which Kelley subjected her, A. K. also added that Nancy physically and mentally
abused her and that Nancy actually knew that Kelley was sexually abusing her.
Additionally, the foster mother—with whom DFCS placed B. K. and her
siblings—testified that Nancy did not follow through with the reunification plan, and
she agreed with trial counsel’s characterization of Nancy as irresponsible. All things
considered, Bridges’s recording would have been cumulative, and the “failure to
17
present merely cumulative evidence does not prejudice a defendant and therefore does
not amount to ineffective assistance of counsel.”25 Kelley also failed to proffer any of
the additional recordings that Bridges allegedly made of his conversations with Nancy;
and so, in this regard he similarly “failed to prove the prejudice prong of his
ineffectiveness claim.”26
(c) Courtney Lander. At trial, Courtney Lander—a friend of the family—did not
testify. Even so, Lander’s name was mentioned when Nancy testified that she told her
Kelley inappropriately touched A. K. Lander was also mentioned when A. K. stated
during the recorded law-enforcement interview that Lander was someone to whom
25
Hudson v. State, 325 Ga. App. 657, 659(2) (754 SE2d 626) (2014). Accord Wesley v. State, 286 Ga. 355, 358(3)(h) (689 SE2d 280) (2010). See Cuyler v. State, 344 Ga. App. 532, 541–42(3)(b) (811 SE2d 42) (2018) (holding that trial counsel’s failure to call particular witness who would have testified similarly to other witnesses who did testify at trial about defendant’s alleged alibi was merely cumulative and a trial counsel’s failure to present cumulative evidence does not constitute ineffective assistance of counsel).
26
Buis v. State, 309 Ga. App. 644, 648 (710 SE2d 850) (2011) (quotation marks omitted). See Wallace v. State, 303 Ga. 34, 42(4) (810 SE2d 93) (2018) (holding that failure to tender telephone records at motion-for-new-trial hearing precluded claim that trial counsel was ineffective by making inadequate efforts to obtain the records for possible impeachment); Holley v. State, 363 Ga. App. 107, 117–18(4)(c) (871 SE2d 13) (2022) (finding that defendant failed to show trial counsel rendered ineffective assistance by not introducing blood-alcohol test of victim when defendant failed to proffer what the test would have shown at the hearing on his motion for new trial).
18
she disclosed Kelley’s sexual abuse. During the hearing on Kelley’s motion for new
trial, Lander was called and testified that Nancy told her B. K. recanted her allegations
several times and that for a short period of time after Kelley’s arrest, Nancy was
adamant Kelley was innocent. Lander added that, although the State’s prosecutors
interviewed her after Kelley was arrested, Kelley’s counsel never contacted her. And
when questioned about Lander during the hearing on the motion for new trial,
Kelley’s trial counsel could not recall if he ever spoke with her.
Kelley argues that Lander similarly could have impeached Nancy and B. K.’s
credibility and that trial counsel’s failure to call her as a witness constituted ineffective
assistance. But the determination of which witnesses to call is a matter of trial strategy
and tactics, and “such strategic and tactical decisions do not amount to deficient
performance unless they are so unreasonable that no competent attorney would have
made them under similar circumstances.”27 Here, while Lander’s testimony could
have called Nancy and B. K.’s credibility into question, based on the statements A. K.
made during her recorded interview, Lander may well have bolstered the allegations
that Kelley sexually abused his older daughter. Indeed, during that interview, A. K.
27
Park v. State, 314 Ga. 733, 743(2)(b) (879 SE2d 400) (2022) (quotation marks omitted). Accord Butler v. State, 313 Ga. 675, 684(4)(b) (872 SE2d 722) (2022).
19
denied ever disclosing the abuse to the aunt who actually testified at trial. But A. K.
stated she told Lander several times that Kelley had been inappropriately touching
her. In light of this fact, coupled with A. K.’s trial testimony steadfastly denying her
earlier accusations, trial counsel could have reasonably determined that Lander’s
testimony would have harmed Kelley’s defense as to A. K.’s allegations more than it
would have helped with B. K.’s allegations. Kelley has failed to show, then, that his
trial counsel performed in an objectively unreasonable way when he did not call
Lander as a witness.28
(d) Charlotte Williams. Kelley similarly argues that trial counsel rendered
ineffective assistance by failing to call Charlotte Williams (a DFCS caseworker), who
would have provided testimony that Nancy and B. K. recanted the allegations. And
when questioned about Williams during the motion-for-new-trial hearing, trial counsel
28
See Strong v. State, 323 Ga. 737, 748–49(4)(a) (927 SE2d 252) (2026) (holding that trial counsel’s decision not to subpoena a witness who might provide testimony harmful to defense was not unreasonable and, thus, did not amount to ineffective assistance); Park, 314 Ga. at 743–44(2)(b) (concluding that the appellant failed to show that trial counsel’s strategic decision not to call a certain witness was unreasonable when trial counsel was concerned that the witness would be more harmful than helpful); Washington v. State, 294 Ga. 560, 566–67(3) (755 SE2d 160) (2014) (explaining that trial counsel did not perform deficiently in deciding not to call a witness who could have contradicted defendant’s alibi).
20
stated that he did not recall her. Later in the hearing, Williams was called and testified
that—after the allegations of sexual abuse arose but before Kelley’s arrest—DFCS
created a safety plan for the children, which prohibited Kelley from living in the family
home during the investigation. But on hearing that Kelley was back in the home (in
violation of the plan), Williams made an unannounced visit to investigate. After
arriving at the home, Williams spoke with Nancy, who confirmed that she allowed
Kelley to return because she wanted to make her marriage work and that she no longer
believed that he sexually abused their daughter. Williams then added that, during this
conversation, B. K. came into the room and—unprompted—stated, “My daddy
didn’t touch me.”
Kelley claims that Williams’s testimony could have impeached Nancy and B.
K.’s credibility and that trial counsel’s failure to call her as a witness constituted
ineffective assistance. But again, the determination of which witnesses to call is “a
matter of trial strategy and tactics, and such strategic and tactical decisions do not
amount to deficient performance unless they are so unreasonable that no competent
attorney would have made them under similar circumstances.”29 And here, a review
29
Park, 314 Ga. at 743(2)(b) (quotation marks omitted). Accord Butler, 313 Ga. at 684(4)(b).
21
of the entirety of Williams’s testimony belies Kelley’s argument that it would have
supported his defense. First, Williams made an unannounced visit to the home
because Kelley was violating the DFCS safety plan by residing with Nancy and the
children, despite being prohibited from doing so. During the visit, she learned that
water to the home had been turned off, and Nancy informed her that only Kelley could
contact the landlord to have it turned back on. Nancy also told Williams that she
needed Kelley back because she could not pay rent on her own. As for B. K.’s
recantation, Williams testified that it startled her as there had been no conversation
about that topic during her visit that would have elicited such an unprompted
response. Indeed, Williams added that, curiously, none of the eight other people
involved with implementing the DFCS safety plan—including the CASA worker, two
foster parents, two other case managers, and daycare workers—ever heard B. K.
recant until Williams did during the visit in question. Given this testimony, it would
not have been unreasonable for trial counsel to believe that Williams’s testimony
would not be beneficial and, to the contrary, could have been harmful to the defense.
22
So again, Kelley has failed to show that his trial counsel performed in an objectively
unreasonable way by failing to call Williams as a witness.30
3. Finally, Kelley maintains that his trial counsel’s cumulative errors denied him
a fair trial.31 But here, the only assumed deficiencies—the failure to call Robertson as
a witness and the failure to introduce Bridges’s recording of his call with
Nancy—would have been cumulative of properly admitted evidence bearing on
30
See, e.g., Park, 314 Ga. at 743(2)(b) (explaining that “the determination of which witnesses to call is a matter of trial strategy and tactics, and such strategic and tactical decisions do not amount to deficient performance unless they are so unreasonable that no competent attorney would have made them under similar circumstances” (quotation marks omitted)).
31
See Woods v. State, 312 Ga. 405, 411(III)(1) (862 SE2d 526) (2021) (explaining that appellate courts “must also consider that ‘prejudice’ is assessed based on the cumulative effect of all of trial counsel’s deficiencies” and “it is the prejudice arising from counsel’s errors that is constitutionally relevant, not that each individual error by counsel should be considered in a vacuum”(citation and punctuation omitted)). In his brief on this claim, Kelley relies on State v. Lane, 308 Ga. 10 (838 SE2d 808) (2020), but Lane “announced a new rule regarding the cumulative effect of a combination of certain trial court errors and deficiencies of counsel.” Woods, 312 Ga. at 410(III)(1) n.7 (emphasis in original). See Lane, 308 Ga. at 14(1) (holding that “Georgia courts considering whether a criminal defendant is entitled to a new trial should consider collectively the prejudicial effect of trial court errors and any deficient performance by counsel—at least where those errors by the court and counsel involve evidentiary issues”). And here, Kelley alleges errors only by his trial counsel not by the trial court. Still, assessing “the cumulative effect of multiple deficiencies on the part of his trial counsel ... has long been part of the Strickland analysis” that governs claims of ineffective assistance of counsel. Woods, 312 Ga. at 410(III)(1) n.7.
23
Nancy’s character, and thus they were “insufficient to show a reasonable probability
that the results of the proceeding would have been different in the absence of the
alleged deficiencies.”32
For these reasons, we affirm Kelley’s convictions and the denial of his motion
for new trial.
Judgment affirmed. Gobeil and Pipkin, JJ., concur.
32
Bates v. State, 313 Ga. 57, 69(3) (867 SE2d 140) (2022). See Williams v. State, 323 Ga. 354, 362(4)(c) (925 SE2d 543) (2026) (explaining that because trial counsel’s alleged errors had any prejudicial effect on defendant’s defense at trial, defendant’s claim of cumulative prejudice necessarily fails); Marrow v. State, 322 Ga. 370, 377(3)(e) (920 SE2d 96) (2025) (holding that assumed errors by trial counsel only resulted in the admission of evidence that was cumulative of properly admitted evidence and thus did not have cumulative prejudicial effect that required new trial).
24